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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply... (More)

About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply. My long, strange career trip has included law and management jobs in two Fortune 50 companies, before founding the legal search and staffing firm Cushing Group, Recruiters. I've lectured on negotiation and settlement strategy, and teach graduate courses at Golden Gate University (Adjunct of the Year for a doctoral seminar on business, law and society). Illinois, Texas and California (Inactive) admitted me to law practice; I hold JD and MBA degrees from the University of Illinois, and a BGS from the University of Michigan, with Distinction. There -- Go Blue! Personally, my daughters are a lawyer in NY, and a pre-med student in NM - their lives-and-times often animate these columns. I'm active in animal advocacy matters, having led a citizen team that took Alameda's city animal shelter to a non-profit operation - we saved $600K annually and the lives of some 700 companion animals/year vs. the City's best alternative. I'm delighted with that success. My family has re-homed 144 foster animals over many years; we host four boisterous border collies of our own. Mostly for humane movement efforts, I was nominated for GQ magazine's 2009 Better Men, Better World Award. You may notice that many of my rants relate to critter issues. In addition to the Raucous Caucus blog, I frequently contribute to The BARK magazine, and am a proud Moderator emeritus on the popular news and humor website www.Fark.com. I prefer scotch over imported beer (Hide)

Nuclear Option Averted; Whirled Peas Reign

Uploaded: Jul 17, 2013

While America slept, our stalwart government has saved us from a fate worse than … gridlock? Perhaps? This week, our Senators worked tirelessly, 'til way past quitting-time one evening, to forge an agreement for the Ages, if your age is denominated in weeks.

You may have missed it, so let's review. The GOP minority caucus in the Senate has made the filibuster, an arcane piece of political theater, into a centerpiece of their Obstruction Strategy. They have thereby monkey-wrenched executive Branch appointments and federal court judgeships, in addition to routine legislation.

But wait … there's more  under current rules they haven't even had to actually filibuster to achieve those results, but just threaten so to do, and they've thereby brought the machinery of government to its knees. In acquiescing this week, they relented on a few Executive appointments in return for withdrawal of others  and retained the right to extend their minority rule into the future.

The filibuster  defined as a dilatory tactic in which members of the minority attempt to stall action on an issue by talking it to death, has a history that dates back to the Roman Senate. In our own American experience, where procedural rules allow it (e.g., the or symbolic gestures.

Thus, the ever-vigorous segregationist Strom Thurmond filibustered a 1950s civil rights act for a record 24-hours and 18 minutes, and Rand Paul recently held forth on drone policy for almost 13 hours. In a mixture of the two purposes, TX state senator Davis opposed an anti-abortion bill long into the last night of the annual legislative session. It later passed, anyway. Senate, but not the House, and in roughly half the states), it has traditionally been reserved for extreme cases,

Various rules apply to regulate filibustering. The generous Senate rules no longer even require actual follow-through, but only the announced intention to filibuster. In TX however, one cannot stray from the topic, take a bio break or even lean on the podium. There is, however, no truth to the Andy Borowitz-fueled rumor that TX speakers will henceforth have to ride a mechanical bull for the entire duration. http://www.newyorker.com/online/blogs/borowitzreport/2013/07/rick-perry-time-to-pass-mantle-to-new-generation-of-boneheads.html

"Cloture" is the process of ending debate and proceeding to a vote. Senate rules require a super-majority of 60 votes  several more than the Democrats can muster on their own. While it's not clear to me that that's constitutional (since the Constitution denominates only a few specific instances in which a super-majority is required), that's the stuff of an even more obscure column. The upshot is that the GOP enjoys the luxury of minority rule whenever it invokes the filibuster  which has been very often since 2009.

This week, the long-suffering Dems finally hissed a major fit and threatened to change the rule to require only a majority to invoke cloture. Not to be outdone, the GOP breathlessly dubbed this minor change a "Nuclear Option," evoking mental images of its Chamber in smoking ruins. While that hyperbole was less effective than they hoped (a majority of the electorate reportedly 'liked' that image on Facebook), it did incent to timid Dems to pull back from that brink, and settle the matter in a smoke-free room. They once again settled for too little.

You see, there's a big difference among filibuster topics: executive appointments, judicial appointments and bills. The latter are fair game. In most instances it is importantly cathartic for the minority and they are eventually voted-down. In exceptionally rare instances, the tactic may shine light on an important matter being ushered through the approval process in darkness  all well and good.

Judicial nominations occupy a middle ground. They are part-and-parcel of what winning the White House should mean that you get to do, but judges enjoy lifetime tenures  usually far beyond the term of the sitting President. Occasionally, there's also an absurd misstep  does anyone recall the name Harriet Miers? So, there really is some enduring impact and a significant check on the process involved in the Senate's "advise and consent."

Executive appointments, however, simply should not be filibustered. The Prez ought to enjoy broad latitude to form his own team, whose impact does not exceed that President's term of office. The Republic has survived atrocious appointments  like Interior chief Watt and EPA Director Gorsuch, who both sought to destroy their Agencys' influence. Conversely, the new and duly-constituted Consumer Financial Protection Board has been hamstrung in getting started by the GOP's months-long refusal to vet the President's nomination. That's dirty pool, in my view, and damaging to the common good, defined as "things the electorate has a right to expect when they elect somebody."

The deal struck this week frees the nominations CFPB chief Richard Cordray and six other immediate appointments, but ends the prospects of two NLRB appointments as face-savers (how would you feel about your nomination being horse-traded away? Yikes). It reserves the GOP's discretion to filibuster future appointments. We are told that the Dems acceded out of concern that the same rules change might apply to them in a minority future. Of course, it could anyway, if a future Republican majority so chooses.

In other words, it's a timorous hostage deal for half the nominees, with no assurance that more prisoners won't be taken later  when alternatively, a simple rule change would have freed them all, and dramatically improved prospects for future doing of The People's work, from either side of the aisle. Perhaps there's a reason we say we don't negotiate with terrorists  by now the Dems might have given away Long Island.

Posted by Tom Cushing,
a resident of Alamo,
on Jul 18, 2013 at 7:41 am

S-P: any attempt to paint the current Congressional dysfunction as just-politics, or business-as-usual is ludicrous. GOP patterns of obstructing the Dems' agenda in both Houses have been unprecedented, conscious, consistent and very effective -- and damaging to the common good, as I see it. But that point has been amply made elsewhere, by lots of observers.

My thesis Here is that the Dems keep playing Charlie Brown to the GOP's Lucy -- expecting the Repubs to play-nice in the future, based on concessions the Dems make in the present. That is also ludicrous -- the teams are playing different games, and as with any hard-bargainer, you have to take your gains up-front, rather than trust in a different future based on illusory notions of reciprocal goodwill. Trust has been broken; there is no goodwill here to be had.

The Dems should have changed the filibuster rules on Executive Appointments and moved-on, fully understanding that the GOP -- if/when it achieves a majority, will certainly act to do so, immediately -- reGardless of what the Dems do now. GOP would probably go farther -- either all the way, because why-not, or at least as far as to include judicial noms, including abortion foes at all court levels.

Remember the old song about the snake who bit the woman who had cared for it? Web Link No, I am not calling all GOP senators snakes (or terrorists), but one should never rely on a species changing its nature.

Dems are sharp, shrewd politicians. They aren't saints, of course. They will stretch the rules too when it suits them (e.g. See enactment of Obamacare).

It's a pattern of abuse of public trust by Washington politicians of both parties.

For example, look how Treasury Secretary Jacob Lew abused the law so that Daniel Werfel could continue serving as Acting IRS Commissioner. Werfel's appointment as Acting IRS Commissioner was set to expire. The law said he couldn't continue in that role. So what did Lew do? He changed Werfel's job title. That allowed Werfel, in substance, to continue serving as Acting IRS Commissioner.

When I first read that, I didn't think much of it. It seemed like a smart way to avoid dealing with Congress and the law. But then I thought, why does the Treasury Secretary believe he can easily circumvent the law and the will of Congress by finessing the statute that way? Is that the right example for the Treasury Secretary to set for those who work at Treasury and the IRS?

What example does it set for taxpayers? Should we finesse the tax laws in a similar fashion?

I thought about all of the abuses by people in positions of power, whether it is spying on private conversations, willful failure to enforce immigration laws, illegal drone strikes, to name a few.

Politicians of both parties thwart the intent of our laws in equal measure and are increasingly unaccountable, particularly in the large federal government, which you want to expand.

You are generally less critical Democrat abuses, as you largely agree with their policy objectives.

Posted by Tom Cushing,
a resident of Alamo,
on Jul 19, 2013 at 12:21 pm

I just do not see much evidence of 'sharp' or 'shrewd' from Sen. Reid, nor support for that kind of claim in your post. I think there Is evidence that the Dems routinely give away too much in their negotiations with the minority party, this being just one example. You seem to agree that they just should have changed the rule.

Furthermore, I have always believed that you and I were both thoroughly unbiased observers of the scene (along with everybody else).

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